Architect E.O. Olaopa V. Obafemi Awolowo University, Ile-Ife (1997)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C.

By a writ of summons taken out in the Oyo State High Court, Ife Judicial Division, the plaintiff claimed against the defendant as follows:-

“The plaintiff’s claim is for the sum of N159,875.00 being the professional fees including incidental expenses incurred by the plaintiff payable to the plaintiff by the defendant in respect of the contract entered into between the plaintiff and the defendant for the designing of a Proposed Commercial Complex for the University of Ife Educational Zone, Oyo Road, Ibadan sometime in 1978. The defendant has failed and still refuses to pay the said sum after completion of the said job by the plaintiff despite repeated demands.”

The defendant denied the plaintiff’s claim and pleadings were ordered filed and exchanged and amended with the leave of the trial court. In paragraph 29 of the Amended Statement of Claim the relief claimed by the plaintiff was set out as follows:

“WHEREOF the plaintiff’s claim is for the sum of N159,875.00 being the professional fees including expenses incurred by the plaintiff payable to the plaintiff by the defendant in respect of the contract entered into between the plaintiff and the defendant for the designing of a Proposed Commercial Complex for the University of Ife Educational Zone, Oyo Road, Ibadan sometime in 1978. The defendant has failed and still refuses to pay the said sum after completion of the said job by the plaintiff despite repeated demands.”

The case proceeded to trial after settlement of pleadings with each party calling wirnesses and putting in some documents in proof of his case. Learned counsel on both sides addressed the court after which judgment was reserved. In his well considered judgment the learned trial Judge, Adekola, made findings of fact and law relating to the issues raised in the case and concluded:

“It s my view that pulling together exhibits A, B, C, and D, they are not enough to constitute a valid contract between the plaintiff and the defendant which would make the defendant liable for the payment of the sum of N159,875.00 as professional fees for the design drawings exhibit E made out by the plaintiff in this case.

By reason of the foregoing points, I finally hold that there was no formal contract between the plaintiff and the defendant.”

xxxxxx

“Having regard to the foregoing points, I have come to the irresistible conclusion that the plaintiff is entitled to a claim on quantum meruit from the defendant in respect of the sketch drawings which he submitted to the defendant in respect of the project at the Education Zone, Ibadan.”

xxxxxxxx

“It is my view, having regard to the type of work done on the sketch drawings exhibit E coupled with the trade usage as revealed by the evidence given by the 4th P.W. in this case, that an amount of N15,000.00 should be a reasonable and fair fee for the services rendered by the plaintiff in the preparation of the sketch drawings. That shall be the judgment of the court in this case.”

The plaintiff appealed against the judgment while the defendant cross appealed against the same on the issue of award of N15,000.00 on quantum meruit, to the Court of Appeal Division, Ibadan. In a unanimous judgment of the Court of Appeal the lead of which was delivered by Ogwuegbu JCA (as he then was), the main appeal by the plaintiff was dismissed while the cross appeal on the issue of the award of quantum meruit was allowed and the amount so awarded was set aside and the defendant was awarded N400.00 costs against the plaintiff for the whole appeal.

Aggrieved by the decision, the plaintiff has now appealed to this court. After obtaining necessary leave of the Court of Appeal and then later of this court, the plaintiff was granted leave to appeal on grounds 3 and 6 by the Court of Appeal and on grounds 1,2,4 and 5 by this court. As a result the parties filed and exchanged briefs of argument.

Before I consider the issues raised and canvassed in this appeal, I think, it is pertinent to set out the facts of the plaintiff’s case as contained in the following paragraphs of his Amended Statement of Claim:-

“2. Sometime in 1978 there was a contract between the plaintiff and the defendant wherein the plaintiff was appointed by the defendant acting by its then Vice Chancellor Professor O. Aboyade and its Building Works Project Committee to design for the defendant a Scheme for the concession Area at Education Zone Ibadan with a view to erecting commercial buildings to generate funds for the defendant.

3. By a letter dated 20th March 1978 Reference No. R/DCA/T/223 the defendant through the Directorate of the Council Affairs invited the plaintiff with the Vice Chancellor to a meeting held on the 28th day of March 1978 to discuss in detail the project referred to in paragraph 2 above.
4. That the plaintiff attended the said meeting wherein he was briefed to design how best to develop the defendants 2.07 Acres of land at Bodija Estate and the 5 acres of land near Emmanuel College, Ibadan.”

xxxxx

12. The plaintiff later completed the design and delivered the same together with the quantity survey to the defendant through its Registrar and copies of the Quantity Survey Report were sent to the Vice Chancellor and the Director of Planning Budgeting and Monitoring of the defendant.
13. That sometime in January 1980 or thereabout the plaintiff forwarded his claims for his fees for the first stage of the work for settlement which is N159,875.00.
14. That after series of letters of demand by the plaintiff, the defendant by a letter dated 23rd November, 1981 confirmed its refusal to pay the said fees.”

Both the plaintiff and defendant will henceforth be referred to in this judgment, as the appellant and the respondent respectively.

Arising from the grounds of appeal, the appellant formulated the following four issues for consideration and determination by this court, to wit:-

“4.01. Whether from the totality of the evidence, including oral and documentary evidence and the conduct of the parties in this case, there was a valid offer from the respondent as offer or which has been accepted by the appellant so as to constitute a valid agreement for consultancy services between them in respect of the project at Educational Zone, Oyo Road, Ibadan

4.02. Whether on the totality of the evidence as borne out by all the correspondences exchanged between the parties and the meetings held and the conduct of the patties which clearly disclose the position of the parties, the contract was a divisible one for which the plaintiff could expect fees for the 1st stage of the contract

4.03. Whether on the totality of the evidence in this case and the conduct of the parties, the services rendered by the plaintiff to the defendant in receiving the brief for the project and producing the preliminary sketch design and approximate estimate of the construction of the project was to be paid for by the defendant in accordance with the scale of fees applicable to Architects as shown n Table 4 of page VI, paragraph 4.1 of Exhibit Y

4.04 Whether the plaintiff/appellant by virtue of the pleadings exchanged between the parties including the admitted facts and evidence led on both sides has established grounds entitling him to succeed on his claims for N159,875.00 as his professional fees for consultancy services rendered to the defendant If the answer is in the affirmative whether the Court of Appeal was right in dismissing the case of the plaintiff in its entirety”

The respondent also in his brief framed three issues for determination in this appeal, which are:-

“2.01 Whether reading Exhibits, A, B, C and D with the evidence on record a valid contract could be said to exist between the parties to ground the appellant’s claim

2.02 If the answer to issue (1) is in the negative, whether the appellant’s failure to make a claim on quantum meruit is fatal to an award based on same

2.03. Whether the appellant’s claim based on scale of fees applicable to Architects could succeed in the absence of evidence of an express agreement between the parties that Architects approved scale of fees will apply”

Issue 1 and 2 of the respondent’s brief are covered by issues 1 and 2 of the appellant’s brief respectively while issue 3 is equally covered by issues 3 and 4 of the appellant’s brief.

It is the submission of learned counsel for the appellant that reading and considering Exhibits A, B, C and D together with the other evidence, both oral and documentary, adduced by the appellant in the case, both the trial court and the Court of Appeal were in error n drawing the conclusion that there was no contract between the appellant and the respondent. It was the contention of learned counsel that the Court of Appeal gave a restricted interpretation to the use of the phrase “The plaintiff was asked to help us to prepare drawing” when from the evidence of P.W.5 and the evidence of the respondents’ only witness, it was clear that there was such a contract. He also referred to the heading of Exhibit B and the purpose of the meeting spelt out in that Exhibit. Learned counsel cited and relied on the following cases -Hussey v. Horne Payne (1878 – 79) 4 App. Cases 311 at 316; A.-G., Kaduna State v. Atta (1986) 4 NWLR (Pt.38) 785 at 795, and Majekodunmi v. National Bank of Nigeria, Ltd. (1978) 3 SC 119 at 127.

In the alternative learned counsel argued that assuming that there was no contract between the appellant and the respondent and in view of the finding of the trial court that “with the type of correspondences which were exchanged between the plaintiff and the defendant after the plaintiff had initially submitted the sketch drawings in 1978, it can be said that the defendant has by their acquiescence misled the plaintiff to believe that the sketch drawings had been accepted and were to be paid for by the defendant in this case”, which has not been challenged, there are materials from which a new contract might be inferred to pay for the work done by appellant having regard to the respondent’s retention of Exhibit E. He cited Lysaght v. Pearson (Times Newspaper of 3rd March, (1979); Cheshire and Fifoot, Law of Contract pages 411-412 (6th Edition); Pattinson v. Luckily (1875) L.R. 10 Exch 330 and Trenco (Nig.) Ltd. v. African Real Estate and Investment Co. Ltd and Anor.

In answer to the submissions made by appellant’s counsel, it was the contention of learned counsel for the respondent that it was a misconception for the appellant to say that reading Exhibits A, B, C and D together along with the evidence adduced, would constitute a valid contract between the appellant and the respondent for the designing of the proposed commercial complex at Education Zone, Oyo Road, Ibadan, otherwise referred to as concession area at Emmanuel College, Ibadan. Learned counsel submitted that the principle of law stated and applied in A. G. Kaduna State v. Atta (1986) 4 NWLR (Pt.38) is not applicable to the facts of the case in hand. He described the relationship between the appellant and the respondent on the proposed project as fluid and uncertain and which could, in all things being equal, develop into a more definite commitment on concrete terms that could ground a claim in favour of the appellant. Learned counsel finally submitted on this issue that the mere retention of Exhibit E by the respondent could not be a basis for concluding that there was a formal contract between the parties and to be paid for by the respondent.

This issue is almost identical with issue (I) argued by the appellant in the Court of Appeal. It involves mainly issues of fact on which the learned trial judge is the best judge.

It is clear from the evidence that the appellant was invited by the respondent (Exhibit A) to the meeting of 28th March, 1978 to discuss in detail the idea of erecting commercial building on the respondent’s piece of land at Education Zone, Emmanuel College, Ibadan, along Oyo Road. See paragraphs 2 and 3 of the appellant’s Amended Statement of Claim (supra). In his attempt to establish the averment in paragraph 2 of the Amended Statement of Claim, the appellant as P.W.1 gave the following evidence:-

“I attended the meeting in March 1978 at the appointed time. At the meeting I was given another assignment in addition to the designing of block of flats. The second assignment given to me by the defendant was in respect of the development of the property at the Educational Zone near Emmanuel College along Oyo Road, Ibadan. Two copies of the minutes of the meeting of28/3n8 were forwarded to me by the Directorate of Council Affairs of the University of Ife, Ile-Ife. This is a Photostat copy of the minutes of the meeting held on 28/3/78.

Chief Adejumo: I seek to tender it. Mrs. Mustapha:- No objection. Notice to produce the original minutes of the meeting of 28/3/78 was served on us.

Order:- Minutes of the meeting held on 28/3/78 admitted and marked Exhibit ‘B’.

The survey plan of the site was later sent to me by the defendant for the purpose of designing the plan for the commercial complex as per the brief in the minutes, Exhibit ‘B’. This is the Survey plan of the site forwarded to me by the defendant.

Chief Adejumo:- I seek to tender it.

Mrs. Mustapha:- No objection.

Order:- Site Plan admitted and marked Exhibit ‘C’. In addition to Exhibit ‘C’, the defendant gave me the feasibility report prepared by a committee set up by the University. It contained briefs for the two projects. This is the copy of the feasibility report sent to me by the defendant.

Chief Adejumo: I seek to tender it.

Mrs. Mustapha:- I have no objection. Notice to produce the original was served on us.

Order: – Copy of the feasibility report admitted and marked Exhibit ‘D’ After having received Exhibits ‘B’, ‘C’, and ‘D’, I prepared the sketch design for the Commercial Complex as per the brief. On 28/11/78, I submitted the sketch design and there and then the defendant asked for an approximate estimate of the Commercial Complex. This is a set of the sketch designs of the commercial complex which I prepared and a copy of the set sent to the defendant.

Chief Adejumo:- I seek to tender it.

Mrs. Mustapha:- No objection.

Order Sketch design admitted and marked exhibit ‘E’.

P.W.1 stated under re-examination that the contract which was the subject of this case was given to him by the respondent on 20th February, 1978. Having regard to the pleadings and the evidence by the appellant I take it that the letter being referred to is Exhibit A which was written by the respondent on 20th March, 1978 and to that effect, I therefore take it that the date mentioned by P.W.1 in reexamination is 20th March, 1978 and not 20th February, 1978 as mistakenly recorded.

P.W.2, the former Vice-Chancellor of respondent said in his evidence in Chief that:-

“I was present at the meeting where Exhibit ‘B’ was made out at the minutes of the said meeting. The defendant had five acres of land near Emmanuel College, Oyo Road, Ibadan. The plaintiff was asked to help us to prepare drawings and to give approximate estimate of the cost of the development of the five acres of land.”

For the formation of any contract, there must be a definite offer capable of being accepted. This is the general principle; but there are certain cases in which the court can make a finding that there is a contract even though it is difficult to analyse the transaction in terms of offer and acceptance. See Clarke v. Earl Dunraven (1897) AC 59 and New Zealand Shipping Co. Ltd. v. A. M. Satterthwaire & Co. Ltd. (1974) 1 All ER 1015 at 1020.

At page 27 of Cheshire and Fifoot – Law of Contract (9th Edition), the law is stated thus:

“An offer, capable of being converted into an agreement by acceptance, must consist of a definite promise to be bound provided that certain specific terms are accepted. The offeror must have completed his share in the formation of a contract by finally declaring his readiness to undertake an obligation upon certain conditions, leaving to the offeree the option of acceptance or refusal. He must not merely have been feeling his way towards an agreement, not merely initiating negotiations from which an agreement might or might not in time, result. He must be prepared to implement his promises, if such is the wish of the other party. The distinction is sometimes expressed in judicial language by the contract of an “offer” with that of an “invitation to treat.” (Italics supplied for emphasis).

Reading through Exhibits A, B, C, D and E relied upon heavily by the appellant to establish a formal contract between him and the respondent. I can find no definite offer in Exhibit A of a formal contract as pleaded in paragraph 2 of the Amended Statement of Claim, nor can I infer such a contract by reading Exhibits A, B, C, and Dalong with the remaining evidence adduced by the appellant. Exhibit A was an invitation to the appellant for discussion among other things for the way and means to develop the 5 acres of the respondent’s land at the concession area near the Emmanuel College, Oyo Road. Exhibit A contained nothing like appointing appellant in his capacity as chartered architect, to design for the respondent a scheme for the concession Area at Education Zone, Ibadan. Exhibit A did not contain any offer appointing the appellant by the respondent, to design proposed buildings for developing the said 5 acres. After discussing the question of developing the 5 acres of land near the Emmanuel College the Committee concluded as follows:-

“Ideals in developing the land

The following ideas of developing the land near Emmanuel College were announced and listed for future consideration:

A bookshop

Hotels Guest Houses

Transit Quarters

Conference Centre (about 100 seats)

About 20 flats

Lodging for occasional retreats

A shopping centre

A pharmacist shop

Block of offices for professionals

e.g Lawyers. Doctors etc.

Children’s playing centre

Service Centre where people can drive in for relaxation.

Summary and Conclusion

The Director of Planning, Budgeting and Monitoring Unit (Mrs. Joyce A. Aluko) was mandated at the meeting to lake necessary action in respect of the land near Emmanuel College, Ibadan. She would be assisted by the Ag. Director of works and University Bursars as necessary. The Consulting Architects were told to move on the issue of preliminary briefs which were mentioned at the meeting in respect of the 2.037 acres of land at Bodija Estate Ibadan. It was unanimously agreed that the briefs will be formalised at the next meeting to be arranged and as members of the committee of Users.

The meeting ended at about 11.50 a.m.”

There is nothing in the excerpt of Exhibit ‘B’ or from the rest of the said Exhibit B to show that any definite offer to the appellant to produce the drawings contained in Exhibit “E” was made by the respondent. Paragraph 9 of Exhibit “B” is illustrative of this fact which stated thus:

“Solution the problem”

After identifying the various problems facing the acquisition of the land, the meeting listed specific steps to be followed to solving them, such as:

Step (1) the University should first and foremost ensure that the exact amount of money that is required for payment to the Oyo State Government for the land is paid without further delay and obtain a receipt to that effect.

Step (ii) the University should arrange a meeting with the Oyo State Ministry of Land Housing with a view to obtaining the site plan; step (iii) once the site plan has been obtained, it should be forwarded to the Consulting Architects. The Vice-Chancellor specifically advised that the University should be more aggressive in seeing that the three steps were followed immediately.”

All that transpired between the appellant and the respondent was a discussion preparatory to the formation of a formal contract. There was no offer capable of being converted into agreement by acceptance, as the respondent had not completed his share in the formation of a contract by a final declaration of his readiness to undertake an obligation upon certain conditions which the appellant could have accepted. All that happened was no more than an invitation to treat. See Carlill v. Carbolic Smoke Ball Co. (1892)2 Q.B. 484 in which Bowen L J. stated the law on the point as follows:

“It is not like cases in which you offer to negotiate, or you issue advertisements that you have got a stock of books to sell or houses to let in which case’ there is no offer to be bound by any contract such advertisements are offers to negotiate offers to receive offers – offer to chaffer….”

I have carefully read through the hosts of authorities cited by the appellant and I am unable to see how they help the case of the appellant. They are either not apposite or quoted out of con.

The conclusion by Adekola J, the learned trial Judge, who painstakingly considered and evaluated the evidence, that:-

“It is my view that putting together Exhibits A, B, C and D, they are not enough to constitute a valid contract between the plaintiff and the defendant which would make the defendant liable for the payment of the sum of N159,875.00 as professional fees for the design drawings exhibit E made out by the plaintiff in this case. By reason of the foregoing points, I finally hold that there was no formal contract between the plaintiff and the defendant.”

cannot be faulted. This finding was also rightly affirmed by the Court of Appeal in its lead judgment by Ogwuegbu JCA (as he then was), wherein he stated:-

I agree also that at that stage no contractual relationship was intended or established between the parties in respect of the 5 acres of land at the Educational Zone, Ibadan. The defendant was yet to make up its mind about the project. Reading Exhibits A, B, C and D, there was no contract which needed any formalisation. The Vice-Chancellor did not award any contract and Ss.3(2), 5(1) (r) and 15 (15) of the University of Ife Law, 1970 cannot be called in aid of the appellant.”

Issue 1 is therefore answered in the negative against the appellant.

Issue 2 and 3 These are taken together by learned counsel for the appellant in the brief he filed. The arguments advanced on these issues have taken care of issue No.3 in the respondent’s brief.

It was the submission of the learned counsel that the Court of Appeal was wrong in law, when it held that the appellant’s failure to make an alternative claim on the principle of implied contract or on the basis of quantum meruit in his pleading adversely affected his claim. He contended that the Court of Appeal should have considered the totality of the evidence to see whether the award made on quantum meruit was justified since the contract was divisible. He argued that the appellant was entitled to take the Vice-Chancellor (P.W.2) of the respondent, (as he then was) at the material time seriously that every thing leading to the award of the contract was regular, particularly when the sketch design, Exhibit “E” was not rejected by the respondent but accepted.

Learned counsel submitted that the appellant, having been induced by P.W.2 who was at the material time Vice Chancellor of the respondent coupled with Exhibits B, C and D and the conduct of the respondent’s agents, he embarked on the work for the project at the Educational Zone, near Emmanuel College, Ibadan, and he was entitled to full payment of his professional fees for producing Exhibit “E”. He said the findings of the learned trial Judge on the issue of formalization of the contract and liability of the respondent to pay reasonable remuneration for the service rendered ought not to have been set aside by the Court of Appeal as the findings were not shown to be unreasonable and perverse. He urged this court to set aside the Court of Appeal decision and restore the decision of the trial court and order the payment in full of the sum of N159,875.00 as his professional fees for the work done for and at the request of the respondent. In support of the submissions above, learned counsel cited and relied on the following authorities among others -Mogo Chinwendu v. Mbamali (1980) 3-4 SC 31 at81; A.-G., Bendel v. Aideyan (1989) 4 NWLR (Pt.118) 646 at 681; Trenco (Nig.) Ltd v. African Real Estate & Investment Co. Ltd & Anor (1978) 4 SC 9 at 24 and Vanderpnye v. Ghadeho (1990) 1 NWLR (Pt.129)716 at 726.

On Issue 4, it was the submission of Chief Adebayo Jimo, learned counsel for the appellant, that it was a serious misdirection by the Court of Appeal to state that the cases of Trenco (Nigerian) Ltd. v. African Real Estate & Investment Ltd Anor. (1978) 4 SC 9.; Linnards Carrying Company Ltd. v. Asiatic Petroleum Co. Ltd. (1915) AC 205; Bolton Engineering Company Ltd. v. Graham & Sons (1957) 1 Q.B. 159, and Obi Obembe v. Wemabod Estate Ltd. (1977) 5 SC 115 are not apposite and therefore not applicable to the present case. He again contended that there was abundant evidence preferred by the appellant as P.W.1 and his witnesses to the effect that there was a contract between the appellant and the respondent for the designing of a proposed Commercial Complex for the University of He Educational Zone, Oyo Road, Ibadan, which was concluded sometime in 1978.

In answer to submissions above it was the contention of learned counsel for the respondent that the case was basically one of a consultant for an on going project being requested to help on the intended project the consultancy of which he is likely to get if it is embarked upon. He submitted that the mere retention of Exhibit “E” by the respondent can be no basis to conclude that there was intention that it would pay for it. He also submitted that even if it was to be said there was a contract to which he did not concede) the appellant did not plead in the alternative, for payment on quantum meruit basis. He said the case was fought entirely on the basis that there was a valid contract and nothing else, On the case of Trenco (Nig.) Ltd v. African Real Estate and Investment Ltd. and a host of others (supra) cited by the appellant, learned counsel for the respondent submitted that there are no similarities between the facts in these cases and the present case, hence the principle of law involved in those cases are not apposite. In support, he cited and relied on Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt. 105) 558 at 650 paragraph G-H. He also cited and relied on a portion quoted from Hudson’s Building and Engineering Contracts (10th Ed.) at p.180 thereof.

He urged the court to dismiss the appeal and affirm the judgment of the Court of Appeal.

It is pertinent to reiterate my earlier conclusion that there was no contract between the appellant and the respondent based on Exhibits A, B, C, D and the oral evidence presented. So the issue that the purported contract is divisible does not arise. The principle of law is that, a party to an entire contract partly performed by him and was, by the act of the other party, prevented from proceeding further with performance, the law entitles him to be paid for the fruits of the labour he has already rendered. In situation like this, two alternative remedies are open to him:-

(a) damages for breach of contract;

(b) reasonable remuneration in quantum meruit for the work already done.

See Planche v. Corburn (1831) 5 C and P 58. So the basis for a claim for payment on quantum meruit is a contract. Where there is no contract between the parties as in this case, a claim on quantum meruit cannot succeed. The appellant from his pleadings based his claim on breach of contract. Both the trial court and the Court of Appeal rightly found that there was no such contract much less it to be breached. And as indicated by the respondent this issue of quantum meruit was not pleaded by the appellant but introduced by the learned trial judge, on compassionate ground, after his finding that there was no contract between the appellant and the respondent for the production of Exhibit ‘E’. The trial Judge was totally wrong to have embarked on that exercise. A court is not entitled to give a party what he has not claimed by way of pleadings. The question of comparing the facts of cases cited by the appellant and relating them to the facts of the present case with a view to applying the principle of law considered in them to this case, is a total misconception of the issue raised in this head of claim. I agree with the Court of Appeal that these cases are not apposite, particularly when there was no alternative claim on quantum meruit by the appellant. In all the cases I have come across, there was either specific claim on a quantum meruit or was specifically claimed in the alternativ